Appeal from the District Court of Towner County, Northeast Judicial District, the Honorable Donovan Foughty, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
[¶1] DiMarie Bjorge appeals from a district court order interpreting Tony Eggl's will. We hold Tony Eggl's will is not ambiguous and demonstrates Tony Eggl intended for his residuary estate to be distributed per capita among his nieces and nephews. We affirm the district court order.
[¶2] Tony Eggl died in January 2009. He was predeceased by all five siblings, four of whom had children. Tony Eggl had sixteen nieces and nephews, fourteen of whom survived him. The niece who predeceased Tony Eggl had five children, four of whom survived Tony Eggl. The nephew who predeceased Tony Eggl had no children. Tony Eggl executed a will, dated August 24, 1995. In relevant part, Article VIII of the will provides:
All the rest, residue and remainder of my estate of every kind and character whatsoever, and wheresoever situated, I give, devise and bequeath unto my brothers and sisters, equally share and share alike. However, if they shall have predeceased me their share shall be distributed to their children, per capita, but if any of their children have predeceased me his or her share shall go to his or her issue (children) surviving me per stirpes by representation in the absence of said issue said distribution shall go to the other children equally in the same manner.
The parties do not dispute the "brothers and sisters" to whom Tony Eggl referred were the four siblings who had children. When Tony Eggl executed the will, two of these four siblings had already died. Tony Eggl also executed a codicil, dated August 7, 2007, when all four siblings had died. The codicil did not modify Article VIII.
[¶3] Following Tony Eggl's death, Donald Eggl and Janet Eggl, Tony Eggl's nephew and sister-in-law, filed an application for informal probate and appointment as co-personal representatives. The district court approved the application. On February 11, 2009, George Ackre, attorney for Tony Eggl's estate, wrote a letter addressed to the "Heirs." In apparent reference to Article VIII, Ackre stated: "The liquid assets in the estate pass to all nieces and nephews or grandnieces and grandnephews by representation." Shortly thereafter, DiMarie Bjorge, Tony Eggl's niece, requested a legal opinion about Tony Eggl's will from attorney Steven Smith. In July 2009, Smith wrote a letter stating Article VIII demonstrates Tony Eggl intended to divide the remainder of his estate equally among his four siblings, and if a sibling predeceased Tony Eggl, that sibling's one-fourth share should be distributed per capita among that sibling's children. Therefore, because all of Tony Eggl's siblings predeceased him, Smith stated the residuary estate should be divided into four shares, and each sibling's one-fourth share should be distributed per capita among that sibling's children. After reviewing Smith's letter, Ackre wrote a second letter in August 2009, stating he was "inclined to follow" Smith's interpretation. In September 2009, twelve of Tony Eggl's surviving nieces and nephews petitioned the district court for an interpretation of his will. Because Tony Eggl's siblings predeceased him, the petitioners argued Article VIII called for his residuary estate to be divided per capita among the nieces and nephews. Bjorge filed an answer to the petition, arguing the district court should interpret the will in accordance with attorney Smith's interpretation.
[¶4] The district court held a hearing on the matter in November 2009 and subsequently issued an order largely adopting the petitioners' arguments. The district court found Article VIII "is not susceptible to more than one reasonable interpretation." The district court noted Tony Eggl used the plural "they" and "their" when discussing his siblings' shares, but "his or her" when discussing nieces and nephews' shares. The district court concluded Tony Eggl meant "their share" to refer to his siblings' collective share, which is the entire residuary estate, and "their children" to refer to all of his siblings' children. Therefore, the district court found "the plain language of the will suggests an intent to have division done equitably to [Tony Eggl's] nieces and nephews, divided by the number of takers in that generation." The district court stated its interpretation is "consistent with the definition of 'per capita' distribution that [Tony Eggl] instructs this generation [nieces and nephews] to take at as well." Bjorge now appeals the district court order interpreting Tony Eggl's will.
[¶5] On appeal, Bjorge argues the district court erred in its interpretation of Tony Eggl's will. However, as a preliminary matter, the petitioners argue the district court order interpreting the will is not appealable.
[¶6] Section 28-27-02, N.D.C.C., provides which orders may be appealed to ...